Movement for Democratic Change v Thokozani Khupe and Others

Following the death of MDC founding President Morgan Tsvangirai on 14 February 2018, a leadership crisis developed within the Movement for Democratic Change (MDC) political party. Two rival factions emerged: one led by Nelson Chamisa (who claimed to be appointed President by the party's National Council) represented by Morgan Komichi who deposed to the founding affidavit, and another led by Dr Thokozani Khupe (who claimed to be Acting President by operation of the party constitution). On 9 April 2018, the applicant (MDC represented by Komichi) filed an urgent chamber application seeking an interim interdict to bar the respondents (Khupe and others) from using the party's registered trademarks (name "Movement for Democratic Change", derivatives "MDC" or "MDC-T", and the party logo) and from passing themselves off as the applicant. The applicant alleged the respondents were former members whose membership had been terminated, and that they refused to recognize Chamisa's appointment and had set up parallel party structures. Each faction claimed legitimacy under different interpretations of the MDC constitution.

• Whether the applicant (MDC) was properly before the court given the dispute over legitimate party leadership
• Whether the application was urgent as contemplated by the rules of court
• Whether section 72 of the Trade Marks Act (Chapter 26:04) had been complied with for an application concerning trade mark infringement
• Whether it was competent to file an answering affidavit in an urgent chamber application
• Whether the interim relief and final relief sought were substantially the same (impermissibly similar)
• Whether the failure to attach the party constitution to the founding papers was fatal to the application

The application was dismissed with costs.

Where there is a disputed leadership succession within a political party with competing factions each claiming legitimacy under different interpretations of the party constitution, neither faction can claim to be the lawful authority of the party until legitimacy is confirmed through proper adjudication by an impartial body (court or arbitration). An application by one faction seeking ancillary relief (such as trade mark protection) is premature and lacks urgency when the fundamental issue of legitimate party leadership remains unresolved. The court will not determine peripheral issues when the substantive constitutional crisis has not been properly placed before it for determination. An applicant must demonstrate proper locus standi before the court can entertain an application on its merits.

The court made several obiter observations: (1) Issues of legitimacy in political parties cannot be resolved on the basis of popularity but must be determined through constitutionalism and adherence to party constitutions. (2) Dr Khupe's insistence on adherence to constitutionalism, if her reading of the constitution is correct, should be commended rather than condemned, citing the principle from Macfoy v United Africa Co. Ltd that void acts are nullities. (3) Given the serious factual disputes between the factions, action procedure might be more appropriate than application procedure. (4) The court suggested a relaxed approach may be appropriate regarding the filing of answering affidavits in urgent chamber applications, respectfully disagreeing with the stricter position taken in Imperial Refrigeration v Willard Mabvuwu, noting that urgent applications represent a departure from strict court rules and parties should have adequate platform to express their positions. (5) The court noted that an application cannot be defeated merely on the basis of a defective draft order, but emphasized this does not excuse poor draftsmanship. (6) The court affirmed that applicants must stand or fall by their founding affidavits.

This case is significant in Zimbabwean jurisprudence as it addresses the role of courts in resolving internal political party disputes and leadership succession crises. It establishes that courts will not intervene in peripheral disputes (such as trade mark infringement) when there is a fundamental underlying constitutional crisis within a political party that has not been resolved. The judgment emphasizes the importance of constitutionalism within political parties and the need for proper adjudication of legitimacy disputes before subsidiary claims can be entertained. It also reinforces principles regarding urgency in chamber applications and the requirement that applicants must have established locus standi before seeking court intervention.